Citation Nr: 0802780
Decision Date: 01/25/08 Archive Date: 02/04/08
DOCKET NO. 05-39 501 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to service connection for residuals of a right
ankle fracture.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
ATTORNEY FOR THE BOARD
A. Roth, Associate Counsel
INTRODUCTION
The veteran had active service from May 1969 until May 1971,
and from January 1974 until February 1985.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from the Department of Veterans Affairs (VA),
Regional Office (RO) in Atlanta, Georgia.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The veteran seeks to establish service connection for
residuals of a right ankle fracture. In the January 2005
rating decision on appeal, the RO declined to reopen the
claim and continued the denial from a July 1998 rating
decision. Accordingly, the veteran's claim for residuals of
a right ankle fracture was certified to the Board as a new
and material evidence claim.
Upon review, the Board does not consider the veteran's claim
to be in the correct procedural posture and therefore, it is
not properly before the Board. As stated above, the RO
originally denied a claim for residuals of a right ankle
fracture by rating decision dated July 1998 on the basis that
no permanent residual or chronic disability subject to
service connection was shown.
In correspondence dated August 1998, the veteran stated his
desire to appeal the July 1998 rating decision and also
raised concerns about his character of discharge and his
status of entitlement to receive VA benefits for his periods
of service. The Board construes this correspondence as a
timely Notice of Disagreement (NOD) to the July 1998 rating
decision. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 19.26,
20.300, 20.302.
Thereafter, the RO issued a Corrected Administrative Decision
in October 1998, which amended the dates of the veteran's
periods of service and their respective characters of
discharge. However, that Decision does not satisfy the RO's
obligation to issue a statement of the case (SOC) upon
receipt of a timely NOD. See 38 U.S.C.A. § 7105(d)(1); 38
C.F.R. §§ 19.26, 19.29, 19.30.
Moreover, the SOC issued in November 2005 in response to he
veteran's NOD to the January 2005 rating decision also does
not satisfy this obligation since it addressed his claim as
one requiring new and material evidence.
In this vein, the Court has directed that where a veteran has
submitted a timely NOD and the RO has not yet issued an SOC
addressing the issue, the Board should remand the issue to
the RO for issuance of an SOC. See Manlincon v. West, 12
Vet. App. 238 (1999). In order to put this issue in the
correct procedural posture, the Board finds that an SOC
should be provided on the issue of entitlement to service
connection for a right ankle fracture.
Additionally, VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A (West 2002); 38 C.F.R. §§ 3.159 (2007); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). In the present case, the
Board finds that additional development is required in order
to satisfy VA's duty to notify the veteran. Specifically, he
should be provided adequate notice in compliance with the
Veterans Claims Assistance Act of 2000 (VCAA). See 38
U.S.C.A. §§ 5103, 5103A (West. 2002); 38 C.F.R. § 3.159
(2007).
In a letter from the RO to the veteran dated August 2004, his
service connection claim was described as one to reopen
requiring new and material evidence. That same notice also
informed him of what evidence was required to substantiate
the claim and of his and VA's respective duties for obtaining
evidence. Such notice did not properly notify him according
to the correct procedural posture of the case.
As such, the veteran should be issued proper notice of his
service connection claim for residuals of a right ankle
fracture in compliance with the notice and duty to assist
provisions contained in 38 U.S.C.A. § 5103(a) and (b) (West
2002). Finally, the veteran has not received notice that
complies with Dingess v. Nicholson, 19 Vet. App. 473 (2006),
such notice should be sent to him.
Accordingly, the case is REMANDED for the following actions:
1. Send proper VCAA notice to the
veteran a letter clearly describing the
type of evidence that he must submit to
substantiate his claim and what evidence,
if any, VA will attempt to obtain on his
behalf. Such letter should also comply
with Dingess v. Nicholson, 19 Vet. App.
473 (2006).
2. The RO should issue a statement of
the case to the veteran and his
representative on the issue of
entitlement to service connection for
residuals of a right ankle fracture.
The veteran is informed that the claim
will be returned to the Board following
the issuance of the statement of the case
only if it is perfected by the filing of
a timely and adequate substantive appeal.
If a timely substantive appeal is filed,
the issue should be certified to the
Board for appellate consideration.
3. Thereafter, the case should be
returned to the Board, if in order. The
Board intimates no opinion as to the
ultimate outcome of this case. The
veteran need take no action unless
otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
L. HOWELL
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).